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Australian legislation

Briefing notes

Australian legislation

12 May 2006 Also available in:

Australia yesterday tabled legislation dealing with unauthorised boat arrivals under which all such arrivals - whether on the Australian mainland or in its excised territory - will have their asylum claims processed off-shore in another country. Australia said it was readying an existing site on the Pacific island of Nauru.

Unfortunately, we just saw this legislation after it was tabled yesterday. Under Article 35 of the 1951 Refugee Convention, which Australia has ratified, it stipulates that state parties undertake to cooperate with UNHCR in the performance of its duties and facilitate our role in supervising the Convention. This has always been understood to mean that when a country is drafting legislation affecting refugees, we should be consulted at an early stage.

The legislation is complicated and it is going to take time to work through it in detail. There are number of issues that need to be clarified, including unfamiliar concepts of new categories of persons such as 'designated unauthorised arrivals' and 'transitory persons.'

We have been invited, and are of course planning to make a formal submission to Australia's Senate Legal and Constitutional References and Legislation Committee, which has set a deadline of Monday 22 May for submissions - effectively six working days. The Committee is expected to report to Parliament on 13 June.

We have previously voiced our concerns over the off-shore processing proposal, including that if it did not meet the same high standards as Australia sets for its own processes, this could be tantamount to penalising for illegal entry. Other concerns were the exclusion of non-refoulement, the real possibility of timely solutions for refugees, and that asylum seekers should be able to live in humane conditions which respect family unity.

From the text introducing the legislation, it appears the offshore processing is going to take place on Nauru which is not a party to the 1951 Refugee Convention. We had a bad experience with the arrangement set in place in Nauru after the Tampa incident, which left many people in detention-like conditions for a long period of time with no timely solutions for the refugees, who suffered considerable mental hardship.

We will have fuller comments after we have read the legislation thoroughly.